Taiwan Supreme Court Says Porn Not Covered By Copyright

from the we-know-it-when-we-see-it dept

The awkward question of whether porn can be covered by copyright (and not much else, amirightgents?) has been debated a time or two on this side of the world. In 2011, some discussion revolved around the protection of "obscene materials," namely the protection extended to porn by the Fifth Circuit Court in a 1979 case involving a porn producer and a chain of adult theaters. This decision was cited in a lengthy footnote appended to a lawsuit filed by Liberty Media against 18 John Does.

In 2012, the argument was made that pornography doesn't "promote progress," therefore it should not be entitled to copyright protection. This particular argument is a rather dangerous one (and composed almost entirely of slope grease) as it puts the extension copyright protection in the hands of the court and allows it to determine whether a piece of erotica is art or "just porn." (The case was closed before this conversation could really get started.)

For years producers of porn movies in Japan have bemoaned the lack of protection their content has received in Taiwan.

In 2010 things came to a head. The leading producers of the 20,000+ adult movies released in Japan each year warned Taiwan that if it didn’t get tough on pirates selling their content on websites and even airing it on TV, legal action would follow.

Taiwan's prosecutors said Wednesday that Taiwanese firms that use Japanese-made pornographic films to make profits online have not violated Japanese producers' copyrights.

The Taipei District Court's Prosecutors Office therefore announced it will not press charges against Elta Technologies Co. Ltd, and 10 other Taiwanese firms that the Japanese studios accused of violating their copyrights.

Despite the producers' arguments that each film was unique and expressed singular artistic vision, prosecutors refused to budge, stating that Taiwan's Supreme Court affords copyright protection only to "works of literature, science and arts." According to the court, porn is not included, therefore it has no "copyright" to be infringed.

This disappointing decision prompting the Japanese porn producers to take another approach, and start calling the kettle black... for litigious reasons.

In a sign of how desperate they had become, the Japanese companies added that if they had no remedy under copyright law, they would sue the pirates for spreading obscene material and damaging the health of Taiwan’s children.

As crazy as it sounds this approach had the potential to work. While authorities have done nothing to protect copyrights of adult material, they do arrest people for distributing obscene material.

Ah, the "for the children" tactic. It's been used here before as justification for SOPA and various computer-snooping plans. This is a bit different, however, as it flips the script on the pirates, turning them from enemies of porn producers to enemies of the state. It's an approach that takes a very oblique angle, but when the usual stuff isn't working, it's time to bust out the "just-crazy-enough-to-work" options.

Unfortunately, it didn't work. (Not crazy enough??)

[T]he adult producer’s claims that the pirates were spreading obscene material and damaging children didn’t gain any ground either. The prosecutors decided that since the pirate sites displayed warnings and blocked minors from accessing their websites then there was no case to answer there either.

At this point, it looks as if Japan's porn producers are out of options, at least in terms of preventing piracy in Taiwan. The court tells them their work is too dirty to protect. They counter by saying their work is too dirty to distribute. The court says (paraphrasing) "It's ok, these sites are using protection." I doubt these producers really want to push the issue of having porn declared a protectable art form and leave the defining line between protectable art and unprotected obscenity in the hands (and minds) of government officials. Perhaps these producers should just concede the battle and focus on areas where they have the protection, or at least, paying customers.

i agree with taiwan

While I appreciate the author's view that this is a slippery slope, I can't help but think porn *is* different, even if it is very hard to define what porn is (but you know it when you see it). Porn is NOT a good thing for society, period. It should NOT be afforded any copyright protections. Perhaps in doing so it will help to stifle this massive, evil industry of moral corruption.

I wonder about reach

Though the rulings only apply in Taiwan I wonder if someone would make the argument in the US or Canada that porn should be copyrighted and point to these rulings. The US Constitution say patents and copyrights are for the promotion of "useful arts" and one could argument that porn is not included by a similar line of reasoning.

I wonder about reach

Though the rulings only apply in Taiwan I wonder if someone would make the argument in the US or Canada that porn should be copyrighted and point to these rulings. The US Constitution say patents and copyrights are for the promotion of "useful arts" and one could argument that porn is not included by a similar line of reasoning.

Re: I wonder about reach

I hope someone does. To readers, note that nobody is saying porn should be illegal, just that is should not be protected by intellectual property laws. Of course, in the US, it surely will always continue to be, since we are operating under the absurd notion that virtually everything should be protected, such as the patentability of business methods
.

Re: I wonder about reach

One could also use an identical argument to say that "Charlie's Angels: Full Throttle" was not a useful art and did not justify copyright protection. It was a derivative, mindless, and terrible movie.

The whole way the useful arts are promoted is that a whole lot of people make a whole lot of work, most of which is absolute crap. A small fraction of the work turns out to be important, and progress has been achieved. For that matter, many works that were later decided to be important (Naked Lunch, Howl, Lady Chatterley's Lover, Catch 22) were originally thought to be worthless and/or obscene.

Trying to apply different tiers of IP law to movies based on the value of their content isn't a slippery slope, it's more of a bottomless pit. Copyright law is terrible enough, without asking courts to make value judgements about the worth of content.

Definition

Tim, I love the way you wrote the article. Yes, the content is good too, but it's hard to do tasty stuff out of this subject.

The problem with that definition is that it mixes things. "Literature" is a technical definition of a work (text), just like "photography", "illustration", "audio" and "film". That's how you classify works in such a law: by media.

But "arts" and "science" is another completely different thing: it's subject or intent, just like "entertainment" and "journalism". By that definition, sports films and advertising illustrations don't have author rights.

It's not creative

I don't know what the Taiwanese court was thinking, but I can imagine an argument that porn isn't "creative". Charlie's Angels might be bad art (or just bad), but it did presumably have a script and a plot, even if a bad one.

One could argue that porn isn't covered by copyright because it lacks a creative element.

Re: It's not creative

It all depends on the point of view. There are porn with plots (I'd risk saying better than Charlie's Angels?) and some are actually entertaining to some point. There are amusing parodies. There are plain raw sex porn and those like X-Art or something (cant recall the producer) that seem to be aimed at the female audience somehow.

You see I do think there is good porn and bad porn just like movies. And a lot of it remains to subjective evaluation. But it is a form of expression and I'd even say art. Some of it bad, tasteless, ugly or offensive. But still art.

The Taiwanese court judged with its moralism, not with impartiality. While I disagree with copyright as it is today "Give to Caesar what belongs to Caesar".

Curse you, Taiwan!

I guess you could say that the Kama Sutra is public domain...but the way you translate it and present it, that is certainly copyrightable. It isn't the art of the acting...that has been around for ages...oh no, it is the cinematography, makeup, and directing...I leave out music because everything I have heard sounds the same.....but certainly the art of depicting and recording "the arts" could easily be copyrightable. It is the copyright trolls who kill it, not copyright.

This particular argument is a rather dangerous one (and composed almost entirely of slope grease) as it puts the extension copyright protection in the hands of the court and allows it to determine whether a piece of erotica is art or "just porn."

Re: I wonder about reach

The US Constitution say patents and copyrights are for the promotion of "useful arts"

No, patents are meant to promote the progress of the useful arts, copyrights are meant to promote the progress of science, by which was meant, in the now slightly archaic English of the 18th century, knowledge. There once was a morality exception for patents, which resulted in the Patent Office refusing to issue patents for contraceptives. So it's possible that had anyone been foolish enough to try to register a copyright on porn back in the day, it would've been rejected. But I think it's better to let copyrights and patents stay neutral on the subject.

Expansion of definition

I think the Taiwan Supreme Court has the right idea.

1. Pr0n should not be covered by copyright.
2. Pr0n is difficult to define.
3. If copyright can be expanded beyond all bounds of sanity, then the fuzzy definition of Pr0n should also be able to expand to cover all works presently under copyright.

Unintended repercussions.

Interesting to consider but this ruling also means that in Taiwan, if a person makes a ``home video'' then anyone who picks it up can sell it or distribute it without asking the participants if it is okay to do so.